Vaidik, J.
Geovany Diaz shot two men during a robbery. One victim died, the other survived. Diaz was convicted of murder and Level 5 felony robbery with regard to the deceased victim and Level 2 felony robbery resulting in serious bodily injury with regard to the surviving victim. He appeals his conviction for Level 5 felony robbery, arguing that it constitutes double jeopardy in light of his conviction for murder. After Diaz filed his brief on appeal, our Supreme Court decided Wadle v. State, in which it established a new framework for analyzing double-jeopardy claims like the one made by Diaz. We find no double jeopardy under either pre-Wadle law or the Wadle analysis and therefore affirm Diaz’s convictions. We also affirm Diaz’s sentence of seventy-eight years in prison.
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Diaz first contends that his convictions for both the murder and Level 5 felony robbery of Harris constitute double jeopardy because his acts “occurred over the course of a few very brief moments” and were really “one action.”
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A few weeks after Diaz filed his brief, our Supreme Court issued two opinions that significantly altered the approach to claims of double jeopardy that, as here, are based on multiple convictions in a single prosecution. See Wadle v. State, 151 N.E.3d 227 (Ind. 2020); Powell v. State, 151 N.E.3d 256 (Ind. 2020). The Court distinguished these claims of “substantive double jeopardy” from claims of “procedural double jeopardy”—where a defendant is charged with the same offense in successive prosecutions. Previously, claims of substantive double jeopardy could be made under constitutional tests established in Richardson (including the actual-evidence test) or under a variety of statutory and common-law rules (including the continuous-crime doctrine). In Wadle and Powell, however, the Court did away with the existing rules and tests for claims of substantive double jeopardy and set forth new tests for such claims, with a focus on statutory interpretation. See Wadle, 151 N.E.3d at 247 (“[W]e now proceed to articulate an analytical framework in which to resolve claims of substantive double jeopardy.”); Powell, 151 N.E.3d at 263-65.
Having reviewed Diaz’s convictions under both the old law and the new law, we see no double-jeopardy violation under either. We reiterate that Wadle did away with the “old law” on claims of substantive double jeopardy, including the Richardson constitutional tests and all common-law rules like the continuous-crime doctrine. We address pre-Wadle law here only because there are outstanding questions about whether Wadle should be applied retroactively. Our conclusion that there is no double jeopardy in this case under either Wadle or the “old law” allows us to avoid that potentially sticky issue, which has not been briefed here.
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Wadle established the new double-jeopardy framework to be applied when, as here, “a single criminal act or transaction violates multiple statutes with common elements.” 151 N.E.3d at 247. (Powell, on the other hand, established the framework to be applied “when a single criminal act or transaction violates a single statute and results in multiple injuries.” 151 N.E.3d at 263.) The Court summarized the test as follows:
[W]hen multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court’s inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. See [Ind. Code] § 35- 31.5-2-168. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. If, based on these facts, the defendant’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction,” then the prosecutor may charge the offenses as alternative sanctions only. But if the defendant’s actions prove otherwise, a court may convict on each charged offense.
Wadle, 151 N.E.3d at 253.
Applying the test here, we first observe that neither the murder statute nor the robbery statute clearly permits (or prohibits) multiple punishment for the murder and robbery of the same victim. The murder statute simply provides that “[a] person who: knowingly or intentionally kills another human being . . . commits murder, a felony.” I.C. § 35-42-1-1(1). The robbery statute provides that “[a] person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits robbery, a Level 5 felony.” I.C. § 35-42-5-1.
Therefore, we move to the second step of the test: determining whether either offense is included in the other (“either inherently or as charged”) under the included-offense statute, Indiana Code section 35-31.5-2-168. If not, there can be no double jeopardy.
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Murder is not established by proof of Level 5 felony robbery because murder requires a killing and Level 5 felony robbery does not. Likewise, Level 5 felony robbery is not established by proof of murder because robbery requires the taking of property and murder does not. Subsection (2) does not apply either, because Diaz was not charged with or convicted of any attempt crime. And subsection (3) does not apply because murder and Level 5 felony robbery differ in more respects than just the degree of harm or culpability required. As just noted, each offense requires some conduct the other does not (i.e., murder requires a killing, Level 5 felony robbery requires the taking of property).
Because neither murder nor Level 5 felony robbery is included in the other, Diaz’s convictions do not constitute double jeopardy under Wadle, and there is no need to further examine the specific facts of the case under the third step of the test.
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Affirmed.
Bailey, J., and Weissmann, J., concur.